State Laws Limit Americans’ Estate Planning Abilities During the Coronavirus

Although the coronavirus pandemic began only concentrated in large cities, there are cases now in all states both in cities as well as more rural areas. More and more people are considering what they want to do if they become infected, including thinking about estate planning.

“You start asking yourself, what happens if I become sick?” Jack Garniewski, president of the National Association of Estate Planners and Councils says. “Do I have the proper legal documents in place so that someone would be able to make decisions for me financially and from a medical standpoint?”

Garniewski says that more Americans are now making sure they have a durable power of attorney, which gives another person the power to make financial decisions for them if they become incapacitated. Many people are also planning how they want their property to be transferred if something happens to them.

Depending on your state’s laws, estate planning documents (including a durable power of attorney, health care power of attorney, and wills) often require notarization and may also require witnesses. The notarization process typically takes place in person, but now we find ourselves in a time when many state governments are asking residents to only leave their homes for emergencies.

Some states already allow remote online notarization for many of these documents, and some have made their laws around this more flexible during the pandemic. However, some states still aren’t allowing online notarization for certain documents.

According to Charlottesville, Virginia-based law firm McGuireWoods, Florida, Idaho, Minnesota and Virginia all allow remote online notarization, and some have allowed this for years.

Vermont, Indiana, and North Dakota have statutes for remote online notarization that have never been enacted. Arizona, Maryland, Iowa, Nebraska, and Wisconsin have enacted these laws, but they have not yet gone into effect. Most of these states have, however, released temporary guidance on options for remote online notarization during the outbreak.

Alabama, Arkansas, Colorado, Connecticut, Illinois, Michigan, Missouri, New York, New Hampshire, New Mexico, Texas, Washington, and Wyoming have all passed executive orders or legislation related to remote online notarization since the start of the outbreak.

But Jeffrey Katz, managing partner at JDKatz Attorneys at Law in Bethesda, Maryland, says he isn’t sure if state laws are evolving as quickly as the outbreak. He noted that Maryland still doesn’t allow witnesses to participate remotely and that a document requiring witnesses would mean the witnesses still need to be physically present.

Andrea Chomakos, a partner at McGuireWoods, says that in the U.S., wills typically require two witnesses, and a health care power of attorney document often requires two witnesses that are not related to the individual. This creates a major issue as most people who are social distancing are only with other family members right now.

Chomakos’ office is located in North Carolina, which doesn’t allow remote online notarization, so she has had to be creative in how to serve her clients who want to sign their wills. North Carolina does allow individuals to transcribe their will in their own handwriting and sign it without needing witnesses or notarization, so in this case, clients are able to handwrite and sign the wills Chomakos sends them.

Tim Reiniger, the principal author of the Virginia’s first remote notarization law which was enacted in 2011, says that the state has strong remote online notarization laws, but these don’t apply to all estate planning documents, including wills.

Reiniger is now supporting a federal bill that would authorize notaries to perform remote online notarizations nationwide. States would then decide how to apply that law to the use of witnesses and certain documents such as wills.

“When we wrote the first online notary law in Virginia, we had no idea that there would be as much interest as there is now, and we find it very exciting,” Reiniger says.

Some people have raised concerns that documents notarized remotely could be litigated after the pandemic. If someone signs estate planning documents under these pandemic conditions and then passes away, these documents might be challenged and the effectiveness of these remote online procedures might be called into question, according to Chomakos.

It can be stressful for estate planning offices to ensure that safety guidelines are followed while people are rushing to get estate planning documents signed during COVID-19, which adds to the importance of online notarizations to reduce risk for all involved. Many people who have delayed finishing their estate plan now have a sense of urgency, Chomakos adds. “It reiterates that these are incredibly important matters.”

For assistance with establishing your estate plan during this time or in areas of Elder Law, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.

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